NGEME v. IGP & ORS (2022)

NGEME v. IGP & ORS

(2022)LCN/17204(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, November 10, 2022

CA/A/178/2020

Before Our Lordships:

Biobele Abraham Georgewill Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

CHUKWUDI NGEME APPELANT(S)

And

1. INSPECTOR GENERAL OF POLICE 2. COMMISSIONER OF POLICE, FCT COMMAND 3. DPO LIFE CAMP POLICE STATION 4. INSPECTOR JOHN 5. MR EMEKA UGWU RESPONDENT(S)

RATIO

THE POSITION OF LAW THE RIGHT TO PERSONAL LIBERTY

By the combined effects of Section 35(1) and 46 (1) of the Constitution every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law, for the purpose of bringing him before a Court in execution of the order of Court or upon such reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence. It follows therefore, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress. Also, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress. This is the protection afforded to every citizen of this Country, and which must never be toyed with and therefore, can only be derogated from in accordance with the permissions stipulated by the provisions of the Constitution itself. See Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill, JCA.

It is therefore, the law that for every proven act of infringement of the fundamental right of the citizen the consequences should be an award of damages against the violator, and indeed the time has come for such damages to be exemplary in character for the purpose of making the breach of the fundamental right of the citizen very unattractive and an unenviable venture in appropriate cases in Nigeria. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR – 40630 (CA) Sir Biobele Abraham Georgewill, JCA. See also Jim – Jaja V. COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225 AT pp. 244 – 245; Igweokolo V. Akpoyibo & Ors (2017) LPELR – 41882 (CA); Dasuki V. Director, General State Security & Ors (2019) LPELR – 48113(CA); Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 489) 420 AT p. 435. PER GEORGEWILL, J.C.A.

THE POSITION OF LAW ON THE DUTY OF POLICE

However, by Section 4 of the Police Act, CAP. P19, LFN 2004, which provides as follows:
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.”
My Lords, whilst it is not and would never be the duty of the Police, as represented by the 1st – 4th Respondents, to either directly or acting under the guise of any subterfuge to facilitate and/or collect or aid the recovery of debt owed a citizen by another as the law Courts are there and well equipped for the citizen to ventilate his civil grievances against another without resort to the Police as a form of self-help in a purely civil matter, yet it is the very fundamental duty of the Police to be saddled with the duty of prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged by law. See Section 4 of the Police Act, CAP. P19, LFN 2004. See also Dr. Nwafor V. EFCC (2021) LPELR – 52949(CA), per Sir Biobele Abraham Georgewill JCA. See also Olusegun & Anor V. EFCC & Ors (2018) LPELR – 45825 (CA), per Sir Biobele Abraham Georgewill JCA, Imoh & Anor V. EFCC & Anor (2018) LPELR – 46579 (CA), per Sir Biobele Abraham Georgewill JCA; EFCC V. Diamond Bank Plc & Ors (2018) LPELR- 44217(SC). PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. FCT/HC/CV/1609/2018: Chukwudi Ngeme.V. Inspector General Of Police & 5 Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed.

The Appellant was dissatisfied with the said decision and has appealed against it vide his Notice of Appeal filed on 6/5/2019 on two Grounds of appeal. See pages 98 -101 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 6/3/2020 and properly deemed on 6/7/2021. With the leave of this Court, an Amended Notice of Appeal was filed on 9/3/2020 on three Grounds of appeal but was deemed as properly filed on 6/7/2021. The Parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 28/9/2022. The Appellant was represented by M. K. Bielonwu Esq. appearing with U. L. Agada Esq. The 1st – 4th Respondents were represented by Chinyere Moneme Esq. The 5th Respondent, though he filed his brief, was not represented by counsel at the hearing of the appeal.

The Appellant commenced Suit No: FCT/HC/CV/1609/2018 against the Respondents as Respondents before the High Court of the Federal Capital Territory, Abuja seeking the following Reliefs:
1. The prior, present and planned arrest and further detention, summons and harassment of the applicant by the Respondents and their agents on an alleged indebtedness of the Applicant to one Mr. Emeke Ugwu of Kubwa Abuja is unlawful, unconstitutional null and void ab initio.
2. The respondents by themselves agents or servants be restrained from further threatening and/or infringing on the fundamental rights of the applicant by threatening him with further arrest except in compliance with Section 35(1), 36 (8 and 12,) 37 and 44 of the Constitution of the Federal Republic of Nigeria 1999, as amended.
3. That unless the leave of this Honourable Court or any other Court of competent jurisdiction is first sought and obtained the 1st, 2nd, 3rd and 4th Respondents either personally or via any of its agents or officers be restrained from further arresting, detaining and harassing the applicant.
4. That the Respondent pay the sum of N10,000,000.00 (Ten Million Naira) only to the Applicant as compensation for the infringement on his fundamental rights.

SUCCINCT STATEMENT OF FACTS
The case of the Appellant as Applicant before the lower Court inter alia was that the 1st, 2nd, 3rd, and 4th Respondents violated his fundamental human rights, especially his arrest, detention and threat of further arrest at the behest of the 5th Respondent in a manner contrary to the provision of Sections 35(1), 36 (8 and 12), 37 and 44 (1) of the Constitution of the Federal Republic of Nigeria 1999. He sought an Order of the lower Court to restrain them and to pay him compensation in the sum of N10,000,000.00. (Ten Million Naira) only as provided under Section 35 (6) of the Constitution. See pages 1 – 5,17 – 18, 37 – 40, 41 – 45 and 70 – 77 of the Record of Appeal.

The case of the 1st – 4th Respondents before the lower Court inter alia was that the 5th Respondent made a report to the Police against the Appellant that he introduced the 5th Respondent to one Eric Metins who resides in Port Harcourt Nigeria and deals with the sale of Oil & Gas and Allied products. On the instruction of the Appellant, the 5th Respondent paid the total sum of N6,400,000.00 to Eric Metins on the agreement that he would supply 36,000 litres of gasoline product to the 5th Respondent, and for which the Appellant travelled to Port Harcourt to oversee the conveyance of the product to Abuja. However, the Appellant later returned to Abuja without the product or the money but gave an excuse that the sum of N1,550,000.00 given to him by Eric Mctius had been collected from him when the vehicle he boarded to Abuja was robbed. On realizing that he had been defrauded by the Appellant and Eric Metins, the 5th Respondent reported the matter to the Police, which invited the Appellant for investigation. The Appellant reported at about 6. 00pm on 6/3/2018, and the Police investigation revealed a prima facie case of fraud and breach of trust. However, it was only on 7/3/2018 at about 7. 00am that the Appellant’s wife came to bail him and he was released on bail when the bail bond was signed on 8/3/2018, and the Appellant wrote an undertaking jointly signed by the 5th Respondent and in the presence of a witness agreeing to return the sum of N500,000.00 to the 5th Respondent and to refund the remaining subsequently. It was whilst investigation was still ongoing that on 26/4/2018 the Appellant rushed to Court to institute the action against the Respondents. See pages 51 – 69 of the Record of Appeal.

The case of the 5th Respondent before the lower Court inter alia was that the Appellant and one Emeka who was based in Port Harcourt of River State fraudulently made the 5th Respondent to deposit the sum of N6,400,000.00 into a Bank Account operated by Emeka for the supply of Gasoline product which both Appellant and Emeka do not have. The Appellant later went to Port Harcourt and collected the sum of N1,500,000.00, a part of the N6,400,000.00 fraudulently obtained from the 5th Respondent as his share of the fraud. The 5th Respondent reported the matter to the Police and the Appellant was subsequently arrested by the Police and a part of the N1,500,000.00 was recovered from the Appellant, who was subsequently granted bail by the Police but before he could be arraigned before the Court, he jumped the administrative bail granted to him by the Police and instituted the action against the Respondents. See pages 19 – 25 and 26 – 29 of the Record of Appeal.

Before the lower Court, the parties filed and exchanged several affidavits, counter affidavits and reply as well as their written addresses and notice of preliminary objection by the 5th Respondent, which were all duly adopted by them at the hearing of the Appellant’s suit. On 30/4/2019, the lower Court delivered its judgment, in which it dismissed the claims of the Appellant against the Respondents, hence the appeal. See pages 85 – 97 and 98 – 101 of the Record of Appeal

ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues for determination were formulated as follows:
1. Whether the lower Court was right in the face of the overwhelming evidence to the contrary, when it concluded in its ruling that the Appellant’s suit was only aimed at stopping the 1st, 2nd, 3rd and 4th Respondents from carrying out their statutory duties provided under the law? (Distilled from Ground 1)
2. Whether one must be arrested before he is investigated to decide whether there is a prima facie case of crime or not? (Distilled from Ground 2)

In the 1st-4th Respondents’ brief, two issues for determination were also formulated as follows:
1. Whether the lower Court was right to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st – 4th Respondents from carrying out their Constitutional duties provided under the law?
2. Whether the invitation of the Appellant was necessary during investigation carried out by the 1st – 4th Respondents?

In the 5th Respondent’s brief, two issues for determination were formulated as follows:
1. Whether the lower Court was right in the face of the overwhelming evidence to have concluded in its ruling that the Appellant’s suit was aimed at stopping the 1st, 2nd, 3rd, and 4th Respondents from carrying out their Statutory duties provided under the law? (Distilled from Ground 1)
2. Whether the arrest of the Appellant was necessary before the investigation to decide if there was prima facia case of crime or not? (Distilled from Ground 2)

I have taken time to consider the depositions in the affidavit, counter – affidavit and reply affidavit as well as the documentary Exhibits as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court. I am of the firm view, and since all the two issues apiece as formulated by all the parties are similar, that the apt issues arising for determination in this appeal are the two issues as distilled in the Appellant’s brief, a consideration of which would involve a consideration of the two issues apiece as distilled in the 1st – 4th Respondents and the 5th Respondent’s briefs. However, I shall consider all the two issues together and resolve them in one fell swoop.

ISSUES ONE AND TWO
(TAKEN TOGETHER)
APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted inter alia that the lower Court erred in law when it held that even though where the right of an individual has been, is being, or is likely to be infringed the Court are enjoined to protect such individual’s right but however, that should not be interpreted to stop the Police from carrying on their statutory duties provided by the law and thereby refused the meritorious claims of the Appellant against the Respondents and contended that the lower Court was wrong because from the evidence before it, the 1st – 4th Respondents were not out to carry out any other duty than lend themselves to the 5th Respondent as his debt recovery agent and urged the Court to hold that the admitted evidence proved that the Appellant was rather unlawfully arrested, detained and only released when he parted with the sum of N500,000.00 as part of the alleged indebtedness to the 5th Respondent with an undertaking to refund the balance of N1,000,000.00 and to allow the appeal, set aside the judgment of the lower Court and grant the claims of the Appellant against the Respondents. Counsel referred to Section 4 of the Police Act, CAP. P19, LFN 2004.

It was also submitted that in law the onus is on the 1st – 4th Respondents to prove that their act was strictly done in furtherance of their statutory duties under the Nigerian law and contended that the 1st – 4th Respondent failed to discharge this burden of proof placed on them by law and therefore, the arrest and detention of the Appellant was clearly unlawful, illegal and not justified by law and urged the Court to hold that the Appellant was merely arrested and detained at the behest of the 5th Respondent solely for the purposes of recovery of debt and nothing else as there was sufficient time between the 8/3/2018 when the Appellant was released on bail and 22/6/2018 to have arraigned the Appellant if indeed they carried out any investigative duty under the law and discovered that the Appellant had committed any offence known to law, and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents. Counsel referred to 35 (1), (2), (3) and (4) of the Constitution of Nigeria 1999 (as amended), and relied on Oceanic Securities International Ltd v. Balogun (2013) All FWLR (Pt. 677) 633 AT p. 662; Ejefor V. Okeke (2000) 7 NWLR (Pt. 665) 363; Agbakoba V. SSS (1994) 6 NWLR (Pt. 351) 475.

On issue two, learned counsel for the Appellant had submitted that the lower Court erred gravely in law when it held that in law, one must be arrested and investigated before the Police should decide whether there is a prima facie case of crime or not and contended that the arrest of the Appellant was neither for the purpose of his investigation nor for the purpose of bringing him before a Court of law to stand his trial or in execution of an Order of the Court but rather for the mere purpose of recovering from him of his indebtedness to the 5th Respondent and urged the Court to hold that it is not the law that one must be arrested before the Police will investigate to decide whether there is a prima facie case of crime or not but rather the correct procedure is for the Police to investigate and then proceed to arrest if the commission of an offence is established and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents. Counsel referred to Section 35 (1) (c) of the Constitution of Nigeria 1999 (as amended), and relied on Agbebaku V. State (2015) FWLR (Pt. 791) 1423 AT p. 1447; Fawehinmi V. I.G. Police (2002) All NLR 357 (SC) 374; Usman V. The Executive Chairman, EFCC (2018) LPELR – 44678 (CA); Ogbe V. Okonkwo & Ors. (2018) LPELR – 43876 (CA).

1st – 4th RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 1st – 4th Respondent had submitted inter alia that the lower Court was right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondents from investigating the case reported against him by the 5th Respondent as he failed to prove any breach of any of his fundamental rights and contended that the powers of the Police includes the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others and urged the Court to hold that the 1st – 4th Respondents acted strictly in line with their statutory mandate in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant for which he was duly arrested, detained and released on bail to await his arraignment and to dismiss the appeal and affirm the correct judgment of the lower Court. Counsel referred to Section 4 of the Police Act 2020, and relied on Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569

It was also submitted that there was no scintilla of evidence to show that the money paid by the Appellant to the 5th Respondent was done under any form of duress or that it was paid as a prerequisite for his bail and contended that the surety to the Appellant, his wife one Mrs. Hope Ngene Chukwudi voluntarily declared her none payment of any money to secure the bail of the Appellant and urged the Court to hold that the law accords a measure of primacy to documentary evidence, of which the bail bond is one and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Ogbe V. Asade (2009) 18 NWLR (Pt. 1172) 106; Osibowale V. Carribcan Finance Ltd (2012) All FWLR (Pt. 627)1; Lamina V. Maidugu (2015) 7 NWLR (Pt. 1458) 323; Udo V. State (2018) LPELR – 46132 (CA); Olowofoyeku V. AG Oyo State (1990) 2 NWLR (Pt. 132) 369.

It was further submitted that from the documentary evidence by way of both the bail application and the bail bond, it is clear that the 1st – 4th Respondent did not at any time act as debt recovery agent of the 5th Respondent as falsely alleged but not proved by the Appellant and contended that whatever settlement took place between the Appellant and the 5th Respondent was out of their own mutual agreement to do so and having nothing to do with the 1st – 4th Respondents and urged the Court to hold that all that the 1st – 4th Respondent did was in line with their statutory duties to confront the Appellant with the allegation of crime reported against him by the 5th Respondent. Respondents further state that at the station the Appellant was confronted with allegations of crime reported against him and the investigation into his claim of an armed robbery attack on him, which was found to be untrue and to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court. Counsel relied on Hassan V. EFCC (2014) NWLR (Pt 1389) 630.

It was also further submitted that the issue of whether the Appellant was charged to Court within any stipulated time was not an issue canvassed before the lower Court and therefore, in law, it cannot be canvased on appeal without the leave of this Court and contended that the Appellant having not sought and obtained the prior leave of this Court this fresh issue is incompetent and must be discountenanced and urged the Court to hold that, at any rate, it is not in every case that the Police must charge a suspect to Court as it may in some cases obtain the legal advice of the DPP to filter and determine which matters should be charged to Court to obviate the possibility of inundating the Courts with all manner of charges and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Akintola & Anor V. Akintola & Anor (2022) LPELR – 57235(CA); Okechukwu V. FRN (2018) LPELR – 50877 (CA).

On his issue two. learned counsel for the Respondent had submitted inter alia that although the lower Court had held that arrest was necessary before investigation, the 1st – 4th Respondents showed clearly that based on the complaint of the 5th Respondent the Appellant was never arrested but was only invited and he came on his own and made statement to the Police at about 6/3/2018 and was only detained to provide a surety to take him on bail which he failed to provide until 8/3/2018 when his wife came forward to sign the bail bond and he was released on bail and contended that there is no law that mandates the Police to carry out its investigation in a particular order and urged the Court to so hold and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel referred to Section 35 of the Constitution of the Federal Republic of Nigeria (as amended), and relied on Ajayi V. State (2013) 9 NWLR (Pt. 1360) 605; Udo. V Essien (2015) 5 NWLR (Pt. 1451) 103.

5TH RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 5th Respondent had submitted inter alia that what the Police investigated the Appellant for was not for debt but for the offence of fraud, which constitutes the crime of cheating somebody in order to get money or goods illegally and contended that the matter before the lower Court bordered on the fraudulent acts of the Appellant in obtaining money from the 5th Respondent which was reported to the Police for investigation and urged the Court to hold that the Appellant having himself admitted his fraudulent acts, there was no further need for the 1st – 5th Respondents to prove why the Appellant was investigated by the Police in the due performance of their duties and to dismiss the appeal and affirm the judgment of the lower Court. Counsel relied on Atanda V. Iliasu (2013) 18 WRN 1 AT p. 20; APC V. INEC (2015) 3 WRN 1 AT p. 62; Ezeugo V. Agim (2015) LPELR – 24572; Fajemirokun V. CB Nig. Ltd (2009) 5 NWLR (Pt. 11356) 588 AT p. 600.

It was also submitted that the 5th Respondent only made a bona – fide complaint to the Police for the swindling of his N6,400,000.00 by one Emeka in Port Harcourt and the Appellant, out of which the Appellant admitted to have received the sum of N1,500,000.00 swindled from the 5th Respondent and contended that the lower Court having taken to review and evaluate the entirety of the affidavit, counter affidavit and reply affidavit of the parties came to the correct conclusion and finding that the only motive of the Appellant, in the face of his obvious involvement in the swindling of the 5th Respondent, was merely to stop Police from carrying out its statutory duties as the matter had nothing to do with any debt recovery and urged the Court to so hold and to dismiss the appeal and affirm the judgment of the lower Court.

On his issue two, learned counsel for the Appellant had submitted inter alia that in law that there are no laydown rules on how the Police is to carry out investigation of a complaint of crime made to it by complainant except the Constitutional provision that regulates the period of detention of the Suspect before arraignment and contended that it is at the discretion of the Police on how to carry out the investigation depending on the set of facts of the complaint and urged the Court to hold that what determines the mode of investigating any offence reported to the Police is based on the discretionary powers of the Police over the set of facts of each case and to dismiss the appeal for lacking in merit and affirm the sound judgment of the lower Court. Counsel referred to Section 4 of the Police Act, 2020 and relied on Olusina Ajayi V. The State (2013) 9 NWLR (Pt. 1360) 589 AT p. 605; Garuba V. Yahaya (2007) Vol. 145 LRCN 549 AT p. 558; Abisi V. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Ezeanuna V. Onyema (2011) WRN 21 (g) pp. 60 – 61; Ayanru V. Mandilas Ltd (2007) Vol. 147 LRCN 1036(g) p. 1058.

APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 1st – 4th RESPONDENTS
My lords, the reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The Appellant’s reply brief is clearly not in consonance with the clear provisions and the intendment of Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See Edo State House of Assembly & Ors V. Igbinedion & Ors (2021) LPELR – 55990 (CA) @ pp. 55 – 57, per Sir Biobele Abraham Georgewill JCA. See also Olafisoye V. FRN 2004 1 SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR-47373 (CA).

Be that as it may, it was submitted inter alia that it was established as fact that the Appellant paid the sum of N500,000.00 to the 5th Respondent at the Police Station before he was released on bail and since in law facts admitted need no further proof, the lower Court ought to have come to the conclusion that all that the 1st – 4th Respondents did was merely to act as debt recovery agents of the 5th Respondent and grant the claims of the Appellant against the Respondents and contended that by their admission it was proved that the 1st – 4th Respondents clearly acted as debt recovery agents for the 5th Respondent in collecting from the Appellant the N500,000.00 as part of the debt of N1,500,000.00 due to the 5th Respondent and urged the Court to hold that the Appellant was made to pay the sum of N500,000.00 to the 5th Respondent by the 1st – 4th Respondents at the Life Camp Police Station under duress before his release on bail and with an undertaking to pay further N1,000,000.00 within a period of time and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the 1st – 5th Respondents. Counsel referred to Sections 107 and 123 of the Evidence Act 2011, and relied on Offor & Anor. V. State (2012) LPELR – 19658 (SC); UBA V. Jargaba (2007) 31 NSCQR 144 AT p. 166; Ezemba V. Ibeneme (2004) 19 NSCQR 352 AT p. 410; Ajao V. Alao (1986) 5 NWLR (Pt. 45) 802; Onyeresi V. Okorocha & Ors. (2019) LPELR – 49475 (CA) 51; United States V. Alzate (1995) 47; United States Vs Gonzalez (2005) 407; Okonkwo V. State (1998) 8 NWLR (Pt. 561) 210; People V. Petznick (2003) 114 CaI.App.4th 663; United States V. Navarro (2010) 608; Ruffin V. State (2008) 992; United States V. Harris (1997) 104; Yadis Nigeria Ltd. V. Great Nigeria Insurance Company Limited (2007) All FWLR (Pt. 370) 1348; Redeemed Christian Church of God (Hagiazo Parish) V. Akadiri & Anor (2019) LPELR – 46780 (CA) 16; Federal Republic of Nigeria V. Mohammed (2014) 19 WRN 1 (a), p. 43; Prince (Dr.) B. A. Onafowokan & Ors V. Wema Bank Plc & Ors (2011) 5 SCNJ 266; Prof. Olufeagba & Ors V. Prof. Shuaibu Oba Abdul – Raheem & Ors (2009) 12 SCNJ 349 AT P. 373; Yadis Nig. Ltd V. Great Nigeria Insurance Co Ltd (2007) 5 S.C.N.J. 86; Dalek Nig. Ltd V. OMPADEC (2007) 2 S.C.N.J. 218; Saraki V. Kotoye (1992) 11/12 SCNJ 26 AT pp. 42 – 43.

It was also submitted that on the issue of the Appellant not being charged to the Court by the Police, in law the Appellant cannot force the 1st – 4th Respondents to prosecute him, therefore such arguments could not have been canvassed by the Appellant before the lower Court and contended that the claim of the Appellant is simply that his fundamental right was infringed upon by the 1st – 4th Respondents as he was arrested and detained not in keeping with the provision of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria but as debt recovery agents of the 5th Respondent as he was only released on bail after he paid part of the alleged indebtedness in the sum of N500,000.00 and urged the Court to hold that the Appellant was therefore, entitled to the enforcement of his fundamental rights against the Respondents contrary to the perverse findings of the lower Court and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents. Counsel referred to Section 46 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended).

APPELLANT’S COUNSEL REPLY SUBMISSIONS TO 5th RESPONDENT
In his reply, learned counsel for the Appellant had submitted inter alia that the appeal borders on the lower Court’s refusal to enforce the fundamental rights of the Appellant and contended that an appeal is by way of a re-hearing of questions involved in an action as presented before the lower Court and not a new suit altogether and urged the Court to hold that before the lower Court the issue of fraud was never raised and should therefore, be discountenanced and to allow the appeal, set aside the perverse judgment of the lower Court and grant the claims of the Appellant against the Respondents. Counsel relied on Attah V. IGP (2015) All FWLR (Pt. 805) 108 AT p. 146; Osolu V. Osolu (2003) FWLR (Pt. 172) 1777 AT p. 1800; Oloruntoba – Oju V. AG Fed (2017) All FWLR (Pt. 874)965 AT p. 1976; Okoye & Anor V. Ecobank (2019) LPELR – 47350 (CA); Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941)1 AT p. 70; Ali V. NDIC (2014) LPELR – 22422.

RESOLUTION OF ISSUES ONE AND TWO
My Lords, consideration of issues one and two would, in my view, involve the evaluation of affidavit, counter affidavit and reply affidavit evidence as led by their parties and the findings reached thereon by the lower Court in the judgment appealed against to see whether or not there was proper evaluation of the evidence and correct findings reached therein by the lower Court?

By the combined effects of Section 35(1) and 46 (1) of the Constitution every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the procedure permitted by law, for the purpose of bringing him before a Court in execution of the order of Court or upon such reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence. It follows therefore, any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress. Also, by Order II Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has being, is being or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur for redress. This is the protection afforded to every citizen of this Country, and which must never be toyed with and therefore, can only be derogated from in accordance with the permissions stipulated by the provisions of the Constitution itself. See Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill, JCA.

It is therefore, the law that for every proven act of infringement of the fundamental right of the citizen the consequences should be an award of damages against the violator, and indeed the time has come for such damages to be exemplary in character for the purpose of making the breach of the fundamental right of the citizen very unattractive and an unenviable venture in appropriate cases in Nigeria. See Inspector General of Police & Ors V. Peter O. Ikpila & Anor (2015) LPELR – 40630 (CA) Sir Biobele Abraham Georgewill, JCA. See also Jim – Jaja V. COP, Rivers State (2013) 6 NWLR (Pt. 1350) 225 AT pp. 244 – 245; Igweokolo V. Akpoyibo & Ors (2017) LPELR – 41882 (CA); Dasuki V. Director, General State Security & Ors (2019) LPELR – 48113(CA); Okonkwo V. Ogbogu (1996) 5 NWLR (Pt. 489) 420 AT p. 435.

Now, before the lower Court, the Appellant filed an Affidavit and a Reply Affidavit. In response, the 1st – 4th Respondents filed a Counter affidavit, annexed to which were five documents marked as Exhibits NPF 1, NPF 2, NPF 3, NPF 4 and NPF 5. Now, Exhibit NPF2, NPF 2 is the extra-judicial Statement of the Applicant at the Life Camp. Abuja, Police Station, and it shows clearly that the Appellant was arrested on 6/3/2018, an arrest which the 1st – 4th Respondent described simply as an invitation as if the Appellant had any choice in the matter, whether to honour or not to honour the invitation of the 1st – 4th Respondents. Then, Exhibits NPF 3 and NPF 4, are the bail application and bond and evidence of deposit of the sum of N500,000.00 by the Appellant on 8/3/2018. with an undertaking to make available a further sum of N1,000,000.00 to the 5th Respondent between 8/3/2018 and August, 2018. So, why was the Appellant invited as claimed by the Police or arrested as claimed by the Appellant? Was it merely for the purposes of recovery of debt owing to the 5th Respondent by the Appellant as claimed by the Appellant or was it for the purpose of investigating the fraudulent obtaining of the sum of N6,400,000.00 from the 5th Respondent by the Appellant and his alleged cohort, one Eric? See pages 1 – 5, 17 – 18, 19-25; 26 -29; 37- 40, 41-45, 51-69, 70 -77 of the Record of Appeal.

In the judgment appealed against, the lower Court thoroughly reviewed and evaluated the entirety of the affidavit, counter affidavit and reply affidavit of the parties, as well as scrutinized the documentary Exhibits placed before it and came to the finding that the arrest, detention and release on bail of the Appellant by the 1st – 4th Respondents acting upon the complaint of the 5th Respondent against the Appellant was justified by law and therefore, did not constitute any infringement of any of the fundamental rights of the Appellant as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended). To my mind, and to my understanding too, this is the real crux of this appeal.

I have taken a closer look at the succinct provisions of Section 46(1) of the Constitution of Nigeria 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and immediately apparent to me from these provisions is the settled position of the law that, unlike in other civil actions in which the remedy is attached to the wrong done, in actions for enforcement of fundamental right as guaranteed in Chapter IV of the Constitution of Nigeria 1999 (as amended), which is the basic law of the land, a breach need not have occurred or taken place before an application can be commenced to secure the protection and/or enforcement of the fundamental right of the citizen from being breached. Thus, in fundamental rights enforcement, the mere likelihood of arrest would suffice to ground an action. See Section 46 (1) of the Constitution of Nigeria 1999 (as amended). See also Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009, and the African Charter on Human and Peoples Right Ratification and Enforcement Act. See further Air Vice Marshal Emmanuel Ejeh (Rtd) V. Chief George Ali & Ors (2022) LPELR – 57593 (CA) per Sir Biobele Abraham Georgewill JCA.

However, by Section 4 of the Police Act, CAP. P19, LFN 2004, which provides as follows:
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.”
My Lords, whilst it is not and would never be the duty of the Police, as represented by the 1st – 4th Respondents, to either directly or acting under the guise of any subterfuge to facilitate and/or collect or aid the recovery of debt owed a citizen by another as the law Courts are there and well equipped for the citizen to ventilate his civil grievances against another without resort to the Police as a form of self-help in a purely civil matter, yet it is the very fundamental duty of the Police to be saddled with the duty of prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged by law. See Section 4 of the Police Act, CAP. P19, LFN 2004. See also Dr. Nwafor V. EFCC (2021) LPELR – 52949(CA), per Sir Biobele Abraham Georgewill JCA. See also Olusegun & Anor V. EFCC & Ors (2018) LPELR – 45825 (CA), per Sir Biobele Abraham Georgewill JCA, Imoh & Anor V. EFCC & Anor (2018) LPELR – 46579 (CA), per Sir Biobele Abraham Georgewill JCA; EFCC V. Diamond Bank Plc & Ors (2018) LPELR- 44217(SC).

There is evidence before the lower Court, which was not even denied by the Appellant, that he had in cohorts, making plan with and in collusion with one Eric Melius to defraud the 5th Respondent of the princely sum of N6,400,000.00 for Eric Metius to supply 36,000 litres of gasoline product to the 5th Respondent, which turned out to be a hoax, and out of which the Appellant admittedly benefited to the tune of N1,500,000.00. Thus, looking at the facts and circumstances of this case as in the Record of Appeal, it seems very clear to me, and I so hold, that there were enough grounds of reasonable suspicions, amounting even to clear prima facie evidence of the commission of crime against the Appellant as reported by the 5th Respondent to the 1st – 4th Respondents, and for which the 1st – 4th Respondents were, in law, both empowered and justified to put into full motion and operation their machinery of investigation against the Appellant to investigate him for the alleged offence of fraudulent obtaining as was reported against him by the 5th Respondent. I also do not see any evidence of any money paid as a condition for bail of the Appellant as there is no such indication in Exhibits NPF 3 and NPF 4. which are the application and bail bonds.

Honestly, I cannot but agree with the apt and unassailable submission of the learned counsel for the 1st – 4th Respondents, as well as learned counsel for the 5th Respondent that the lower Court was impeccably right when it held that the Appellant’s suit was aimed merely at stopping the 1st – 4th Respondent’s from investigating the case reported against him by the 5th Respondent. Thus, the finding by the lower Court that the Appellant failed woefully to prove any breach of any of his fundamental rights is unimpeachable and must therefore, be allowed to stand. I do hereby, and without much ado, so allow it to stand. We as appellate Court do not make an habit of interfering with the correct findings of the lower Court, but rather we affirm them as correct and end the matter. See Adamu V. Ashaka Cement Co. Plc (2015) LPELR – 25610 (CA) per Sir Biobele Abraham Gcorgewill JCA.

Indeed, the powers of the Police include the detection of crime, the apprehension of offenders, the preservation of law and order amongst several others, and the 1st – 4th Respondents, on the proven evidence before the lower Court as in the Record of Appeal, acted strictly in line with their statutory duty in arresting, detaining and investigating the allegation of fraud reported against the Appellant by the 5th Respondent, of which there was strong prima facie evidence against the Appellant, including his own voluntary admission. See Section 4 of the Police Act 2020. See also Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569. See also Hassan V. EFCC (2014) NWLR (Pt 1389) 630.

My lords, what, if I may ask, was the Appellant even thinking of? A person colludes with another and rips off another of the princely sum of N6,400,000.00 and get his princely share of N1,500,000.00 of the loot and then returns to the victim and inform him that armed robbers had robbed, but I think the proper description should have been ‘re – looted, his own share of the allegedly swindled sum of N1,500,000.00 whilst he was in transit from Port Harcourt to Abuja. The Appellant really needed and looked forward, perhaps, to a medal of honour, or is it dishonour, from the 5th Respondent as well as the 1st – 4th Respondent, whose investigation revealed that the story of armed robbery on the highway against the Appellant was also a hoax. I find neither any evidence of any duress nor of any debt recovery activity on the part of the 1st – 4th Respondents. The sum of N6,400,000.00, of which a part thereof amounting to N1,500,000.00 was collected by the Appellant are not product of any debt but of crime, which is subject to the investigative powers of the Police. The Appellant must be ready to face the consequences of his wrong choices in life! He can neither put the blame on others or on the Society or even on the Police for taking action against him, if so moved by a valid complaint, as was done by the 5th Respondent against him, within the confines and limits of their powers under the law. See Section 4 of the Police Act 2020.

It follows therefore, that in law arrest properly made by the Police or any of the Law Enforcement Agencies cannot constitute a breach of fundamental Rights. Thus, a citizen arrested by the Police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the Police in Court for the breach of his fundamental rights, and if he does so he cannot succeed in such a claim against the Police. See Sambo V. Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249, where it was stated inter alia thus:
“No citizen of Nigeria no matter his status is above the laws of the land and is subject to the powers of arrest and detention upon reasonable suspicion of having committed a criminal offence”
See also Udo V Essien (2015) 5 NWLR (Pt. 1451) 103.

In the light of all I have stated above, I thought I should make it abundantly clear there is no initial onus on the Police to prove the negative that the Appellant’s fundamental rights were not breached unless and until the Appellant has presented at least prima facie evidence of the alleged breach or threatened breach of his fundamental right against the Police. Thus, in law the burden of proof lies on anyone who asserts to prove what he asserts, and in cases of enforcement of fundamental rights, the burden is on the Applicant to prove that his fundamental rights was breached or in danger of being breached. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 569; Sambo V. Nigerian Army Council (2017) 7 NWLR (Pt. 1565) 249.

I have scanned through the entire Record of Appeal and I cannot find or see where the parties joined any issues cither on the failure of the Police to charge the Appellant to Court within any specified time or whether the Appellant was invited rather than arrested, both of which amounts in my view to one and the same, and therefore, these not being issues canvassed by any of the parties, cannot become issues in this appeal by their parties mere wishful thinking and/or belief without the requisite prior leave of this Court sought and obtained to do so. These issues are hereby discountenanced as going to no issue in this appeal.

Now, having held that the 1st – 4th Respondents acted within the limits of the powers conferred upon by them by law in arresting, detaining and releasing the Appellant on bail on the serious criminal allegations of fraud, of which there was prima facie evidence before the Police, including the admission by the Appellant before the Police, I consider issue two for determination as having become merely academic as there was prima facie reason or basis for the arrest of the Appellant.

However, had there not been a prima facie basis for the arrest and detention of the Appellant, then issue two for determination would have become apposite since it is time the Nigeria Police, and indeed all other Law Enforcement Agencies, should desist from arresting and detaining Citizens accused of one crime or the other in order to look for prima facie evidence to justify that prior arrest and detention, rather than for the Police to conduct discreet investigation upon a complaint, as it is done in other climes, to find reasonable suspicion or prima facie evidence to warrant an arrest. In other words, an arrest merely for the purpose of looking for prima facie basis for the arrest is wrong. It should rather be prima facie evidence as basis for an arrest. This is what civilized and best practices in good policing entails.

Thus, it is for the Police to investigate at least to ascertain some form of prima facie evidence before proceeding to arrest a suspect if prima facie there is evidence of the commission of an offence, unless the Suspect was caught in action in the alleged commission of the crime. See Fawehinmi V. IG. Police (2002) All NLR 357 (SC) AT p. 374, where the Supreme Court per Uwaifo, JSC had emphatically stated inter alia thus:
“I think I can say this that in a proper investigation procedure, it is unlawful to arrest until there is sufficient evidence upon which to charge and caution a suspect. It is completely wrong to arrest, let alone to caution a suspect, before the police look for evidence implicating him.”
My lords, even at the level of this Court in the hierarchy of Courts in this Country, we too have spoken in clear condemnation of the procedure whereby an arrest is made first by the Police before evidence to incriminate the suspect is scavenged for by the Police. See Agbebaku V. State (2015) FWLR (Pt. 791) 1423 AT p. 1447, where this Court Ogunwumiju, JCA (as he then was but now JSC) had stated inter alia thus:
“The first step in criminal administration upon the commission of a crime is police investigation. The next step is securing the presence of the accused person before the Court, either by the use of private summons, public summons or warrant of arrest. In extreme cases where the accused is evading and refusing appearance before the Court, a bench warrant is issued.”
I think I have said enough!

In the light of all I have stated and found as above, issue one for determination is hereby resolved against the Appellant in favour of the 1st – 5th Respondents.

On the whole therefore, having resolved issue one for determination against the Appellant in favour of the 1st – 5th Respondents, and having duly discountenanced issue two for determination as being merely academic, I hold that this appeal lacks merit and is liable to be dismissed. Consequently, this appeal is hereby dismissed.

In the result, the decision of the High Court of Federal Capital Territory Abuja Division, Coram: Bello Kawu J, in Suit No. ECT/UC/CV/1609/2018: Chukwudi Ngeme V. Inspector General of Police & Ors delivered on 30/4/2019, in which the claims of the Appellant as Applicant against the Respondents were dismissed, is hereby affirmed.
There shall be no Order as to Cost.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is consequently dismissed.

The decision of the High Court of Federal Capital Territory Abuja Division in Suit No. FCT/HC/CV/1609/2018 delivered on 30/4/2019 is hereby affirmed.
I abide by the consequential Orders.

DANLAMI ZAMA SENCHI, J.C.A.: I have read in advance before now, the lead judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal lacks merit and it is accordingly dismissed.

The judgment of the High Court of the Federal Capital Territory, Abuja delivered on 30th April, 2019 in suit No.
FCT/HC/CV/1609/2018 by BELLO KAWU, J is hereby affirmed.
No Order as to costs.